procures the publication of that from which damage results, CHAPTER XIV. he will not afterwards be at liberty to ascribe his loss to the defendant's act, but be considered as the voluntary author of the mischief which follows (g). A company's report containing imputations on the plaintiff, When nominal damages should as manager, was issued to the shareholders: the defendants be given. afterwards published it in a newspaper; it was ruled by Wightman, J., that although privileged as regards the shareholders, it was not so in respect of the publication in a newspaper: yet if the latter publication was made bonâ fide, and without malice, the jury would be justified in giving merely nominal damages (h). apportionment In consolidated actions, under the Law of Libel Amend- Consolidated ment Act, 1888 (i), the jury are required to assess the whole actions, amount of the damages (if any) in one sum, but a separate of damages. verdict must be taken for, or against, each defendant, in the same way as if the actions consolidated had been tried separately; and if the jury find a verdict against the defendant or defendants in more than one of the actions so consolidated, they must apportion the amount of damages which they have so found between and against the said last-mentioned defendants. be the direct the Slander. Evidence of Special Damage.-Where special damage is The Special essential to the action, the plaintiff must prove it according to Damage must the allegations in his Statement of Claim (k). It must be consequence of shown that the damage alleged and proposed to be proved, was the natural and immediate consequence of the slander (l). The general rule is, that no evidence of special damage is admissible, unless it be averred in the pleadings. words are Where the words are in themselves actionable, no proof of Where the special damage is necessary (m), although such be alleged. actionable. But the plaintiff cannot in that case, any more than where per se. the special damage is the gist of the action, give evidence of any consequential damage, which is not alleged in the claim (n). And where special damage is alleged in the Claim, it must be proved as laid (0). (g) 3 B. & P. 592; 5 Esp. R. 15. (h) Davis v. Cutbush and others, 1 F. & F. 487. (i) 51 & 52 Vict. c. 64, s. 5. (k) Ward v. Weeks, 7 Bing. 211; Sterry v. Foreman, 2 C. & P. 592. (1) Knight v. Gibbs, A. & E. 43; Haddon v. Lott, 15 C. B. 411. (m) Ingram v. Lawson, 6 Bing. (n) Geare v. Britton, B. N. P. 7. CHAPTER XIV. manner the It is always necessary to show in what manner the plaintiff's character could suffer from an alleged libellous imputashown in what tion. So in the case of a Roman Catholic priest accused of Publication is imposing cruel penance on a Roman Catholic subject, it must injurious. be shown what course it was competent for the priest to pursue in imposing penance; and how the enjoining of the alleged cruel penance would affect the character of a Roman Catholic priest (p). The Damage need not be the necessary consequence. Evidence of The law does not require that the special damage resulting from a slander, should be the necessary consequence arising from the utterance of the words; it is sufficient if it be the direct, natural or probable consequence or effect (q). The loss of a customer is special damage, although, if the special loss of dealing had taken place with such customer it would have been a losing transaction (r). Custom; of general loss of Custom or Trade. Profits and extent of Business. In an action of slander, alleging that the plaintiff in consequence of the slander, lost his customers; it was formerly the rule that he could not give in evidence the loss of any whose names were not specified in the declaration (s). That doctrine has however been virtually overruled; and it has been held in recent cases, that in an action for slander of the plaintiff in his trade or business, it is sufficient to allege and prove as special damage resulting from the slander, a general loss of custom, without specifying the names of the customers who ceased to trade or do business with him (t). Evidence as to In estimating the damage for a libel published of a man in the way of his business, the jury must have some evidence as to the nature and extent of the business carried on by the plaintiff; for the same amount of damages ought not to be given in a case where the plaintiff's business is small, as where it is large (u). Damage: when too remote. Where the defendant libelled a performer at a place of public entertainment, in consequence of which, from the fear of being hissed, she refused to sing; and the plaintiff (the proprietor) alleged as special damage, that his oratorios had in (p) Hearne v. Stowell, 12 A. & E. 719. (1) Lynch v. Knight and wife, 9 H. & L. 591 and 595. (r) Storey v. Challands, 8 C. & P. 234, per Lord Denman, C.J.; and see Bateman and wife v. Lyall and wife, 7 C. B. (N. S.) 638. (8) Hartley v. Herring, 8 T. R. 130. (t) Erans v. Harries, 1 H. & N. 251; 26 L. J. Ex. 31; Dixon v. Smith, 5 H. & N. 451; 29 L. J. Ex. 125; Riding v. Smith, 1 Ex. D. 91; 45 L. J. 281; Ratcliffe v. Frans (1892), 2 Q. B. 524; 61 L. J. 535. (u) Ingram v. Lawson, 6 Bing. N. C. 212. consequence been more thinly attended; it was ruled that the CHAPTER XIV. injury was too remote, and that it did not appear but that the refusal to perform arose from some groundless apprehension, or from caprice or indolence (x). Where the action was for slander spoken of the defendant on the Royal Exchange, in his business of a captain in the merchant service; and it was alleged, that by reason of the slander, divers persons (naming them) "who would otherwise have retained and employed the plaintiff declined and refused to do so"; the evidence showed that other persons would have recommended the plaintiff, and that the persons named in the declaration would have employed him on such recommendation. It was objected that the special damage was not proved as laid; that the persons alluded to did not refuse to employ; that it was true they did not employ, but that was not on account of the slander, but on the ground of the non-recommendation; and Best, C.J., allowed the objection (y). intention of Upon principle, the spirit and intention of the party pub- Evidence of lishing a libel are fit to be considered by a jury in estimating the spirit and the injury done to the plaintiff; and evidence tending to prove the defamer. it, cannot be excluded simply because it may disclose another and different cause of action (z). Therefore either party may, with a view to the damages, Evidence of give evidence to prove or disprove the existence of a malicious subsequent publications. motive in the mind of the publisher of defamatory matter. But if the evidence given for that purpose establish another cause of action, the jury should be cautioned against giving any damages in respect of it. And, if such evidence be offered merely for the purpose of obtaining damages for such subsequent injury, it will be properly rejected (a). But it will be Damages in no misdirection if the judge omit telling the jury not to respect of subsequent give damages in respect of a publication subsequent to the publications; libel (b). tions. In an action of slander, the plaintiff in showing special and repetidamage must confine his proofs to the evidence of persons who heard the defendant speak the words (c). For repetitions by (x) Ashley v. Harrison, 1 Esp. C. 48, per Lord Kenyon, C.J. (y) Sterry v. Foreman, 2 C. & P. 592; see also Hoey v. Felton, 11 C. B. (N. S.) 142; 31 L. J. C. P. 105. () Pearson v. Le Maitre, 5 M. & G. 720. (a) Ibid. 5 M. & G. 700; 6 Scott, N. R. 607. (b) Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J. Ex. 228; Goslin v. Corry, 7 M. & G. 342; 8 Scott, N. R. 21. 74. (c) Rutherford v. Erans, 4 C. & P. CHAPTER XIV. a third party who heard the defendant speak them, the defendant is not liable (d). Measure of damages. defendant's In the case of libel there is no measure that can be called a legal measure as to the damages: the jury have to consider Jury may take the conduct of the parties (e); and are entitled to look at the whole conduct of the defendant, from the time of the publicaconsideration. tion of the libel down to the time of giving their verdict. They may consider what his conduct has been before action, after action, and in Court during the trial (ƒ). conduct into damages by plea of justification. Aggravation of The jury may take into consideration the nature of the imputation, how it has been made, and how persisted in down to the time of the verdict. The defendant's conduct, in putting a justification on the record which he does not attempt to prove and will not abandon, may be considered as evidence of malice and an aggravation of the injury (g). And where the defendant, at the trial, abandoned his plea of justification and apologized for it; it was held, that the apology and abandonment came too late; and that the jury might, in estimating the damages, consider the fact of the defendant persisting in the truth of his imputation by putting such a plea on the record, and only abandoning it at the last moment (h). By crossexamination of Plaintiff. Extent of circulation of the Libel may be proved. And where counsel for the defendant, in an action of libel, cross-examined the plaintiff with a view of showing that he had been guilty of the crime of which he had been acquitted, Cockburn, L.C.J., directed the jury that such was an aggravation of the libel; and that the damages must follow the aggravation (i). Where the libel complained of is published in a newspaper, evidence may be given to show the extent of the circulation of the newspaper, and consequent injury to the plaintiff; by proving that copies of it, containing the, libel, have been gratuitously circulated in the neighbourhood in which the plaintiff resides; though it be not shown that such copies were sent by the defendant, the publisher (k). And in (d) Ward v. Weeks, 7 Bing. 211; 4 M. & P. 796; Tunnicliffe v. Moss, 3 C. & Kir. 83; Dixon v. Smith, 5 H. & N. 451; 29 L. J. Ex. 125; Clarke v. Morgan, 38 L. T. 354. (e) Per Lord Russell, L.C.J., in The British Empire, &c. Co. v. Linotype Co., Ltd., 14 T. L. R. 255. (f) Praed v. Graham, 24 Q. B. D. 53, 55; 59 L. J. 230. (g) Simpson v. Robinson, 12 Q. B. 513. (h) Warwick v. Foulkes, 12 M. & W. 507. (i) Risk Allah Bey v. Whitehurst and another, 18 L. T. (N. S.) 615. (k) Gathercole v. Miall, 15 M. & W. 319. directing the jury as to damages, it is not necessary to caution CHAPTER XIV. them as to the injury sustained by telling them to take into consideration the fact that one publication only has been proved; and that, a mere sale of the libel to the plaintiff's agent (1). Under the Libel Act, 1843 (6 & 7 Vict. cap. 96, sec. 2), Payment into damages might formerly, under certain conditions therein court, effect of. stated, be paid into court. But it was held that, where the plea under that section was not proved at the trial, the damages should be assessed wholly irrespective of the amount paid into court (m), and without considering that payment in any way as an admission of liability (n). So much of the section, however, as related to the payment into court, is now repealed consequently those cases are no longer law. A defendant by paying money into court in actions of slander and libel, now admits the claim, or cause of action, in respect of which the payment is made. And he cannot, with a payment into court, plead a justification to the same libel, nor a defence denying liability (o). But where a defendant pleaded a statutory defence under the Libel Act, 1843, s. 2, to the effect that the libel was published without actual malice and without gross negligence, an apology and payment into court of £5; and the jury found that the libel was published without actual malice but not without gross negligence, and that the apology was sufficient; and they assessed the damages at £5: it was held, that the defendants were not entitled to avail themselves of the payment into court, and that the plaintiff was entitled to judgment (p). denying Where, in an action of libel, the defendant paid money into Payment into court in satisfaction; and without denying liability: the plain- court without tiff proceeded with the action, but did not take the money out liability. of court. Meanwhile the defendant died: it was held that the defendant's executors were not entitled to have the money paid out to them; but that the plaintiff was entitled to it (q). Where there is more than one libel alleged in the statement Payment in, where several, of claim, or where the libels are divisible, the defendant is at liberty to plead justification to one or more of the charges, libels. and as to the other or others, may pay money into court; but (1) Duke of Brunswick v. Harmer, 14 Q. B. 189. (m) Lafone v. Smith, 4 H. & N. 158. (n) Jones v. Mackie, L. R. 3 Ex. 1; 37 L. J. Ex. 1. F.S. (0) R. S. C., Ord. XXII. r. 1. (q) Brown v. Feeney, 1 K. B., (1906) Q or divisible |